NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 10a0363n.06 Case No. 06- 6392 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT BILL Y E UG EN E G LOD JO, P etitioner -Appellant,
v. P AT TI W EBB, Wa r de n, Respondent-Appellee.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON AP P EA L F RO M THE UNITED STAT ES DIS TRICT COURT F OR THE WE STE RN DI S TR IC T O F K

EN TU CKY

Be for e : B AT CH ELD ER , Chi e f C ir c uit Judg e ; S UT TON and K ETHL ED G E, C ir c uitJudg e s. AL I CE M. B AT CH E L DE R, Ch i ef J u d ge. A K e ntu c k y p r is o ner a ppeals the district c ourt’s de nia l of his pe tit ion

fo r a wr it o f h a be a s c or pu s o n g ro un ds of

ine ff e c tiv e a ssi sta

nc e of tr ia l c ouns e l. We a ff ir m. I. Billy Glodjo and Chery

l Cherry met i n 1 990, beg an dating , and eve ntually beg an living toge ther in a r esidenc e on Spruce L ane in Warr en County , Kentucky . But by October 1994 they wer e no longe r living toge ther. Glodjo w as in a lcohol reha bilitation and had moved out be cause Cherry was still drinking. Cher

ry continued to live at the Spruce L ane r esidenc e, alongwith a tenant, a n elder ly man named K enneth Chilson. On the eve ning of

October 25, 1994, Glodjo arrive d at the S p ru ce L ane r esidenc e to meet Cherry , who was intox icated when he ar rived. Much of

what happe ned next is di sputed, but it is not disputed that Glodjo struck Cherry with his car, c ausing massive interna l inj u ri es . She was take nN o . 0 6- 6392

G lod jo v. We bb

2 to t he ho sp ita l by

a mbu lanc e and

die d th e fo llo wing day
. Th e S ta te of Ke ntu c ky

c ha rg e d G lod jo
w i t h m u r d e r , b u tG l o d

j o d e f e n d e d t h a ti th a d

b e e nana c c i d e n t
. T h e c a s e w a s t r i e d t o a j u r y. The State theor ized that there ha d been a n argument in wh i ch Gl o d j o h ad rippe d the telephone f

rom the wa ll, ransa ck ed t he re sidence , either c hased or followed Cher

ry out to the dr ive wa y , and a ft e r fu

rt he r y e lli ng and arguin g , ha d in te nti on a lly dr ive n o ve r h e r w ithhis c ar — fi rs t forwa rd and the n backw ard — w hereu p o n h e turne d his rag e on Chilson, whom he assaulted a nd chase d from the scene . The State produce d witnesses to te stify that the house wa s in disarray and the telephone torn from the w all. The S tate’s ke y witnesses we re B illy

Be nson and his niece , Br andi Sanders, who lived up the roa d and who testified that they hear d y elling a

nd arguing c oming f

rom the Spruce L ane r esidenc e, hea rd Glodjo rev his c ar e ng ine ver y high , an d saw Glodjo drive ove r something a

nd then bac k over it ag ain, though they could not see e x actly what. The y

rushed to the Spruce L ane r esidenc e and sa w Glodjo holding Cher

ry apologi z i n g, b ut Cherry

was plea ding that sh e wa s in pai n. Th e y

a lso saw G lod

jo a ssa ult Chi lso n a nd purs ue him

in h is c ar. Af

te r G lod jo l e ft , they called 911 and waited f or the ambulance, dur ing w hich time Br andi Sander s asked Cher ry who had run he r over

and Cherr

y answe red, “ Billy

Glodjo, but I don’t know why .” Glodjo testified that Cherry ’s death was an a ccide nt. He ex p l ai n ed that he ha d been in a n alcohol re habilitation clinic in Nashville (about one hour awa y ), and that he and Cher

ry had bee n attempting to mend t heir troubled relationship. She had invi ted hi m for dinner, but when he arr ived
s h e wa s dru n k

an d p as s edo u to n

t h e b ed
. He wo k e h er

an d s h e l ef tt h e b ed ro o m , p re s u m ab l y t o go to the bathroom. Whe n s h e did not return, he sear ched the house and c ould not find her, so he be c a me c on c e rn e d. As su min g sh e ha d w and e re d o ff , h e ra n to his c ar a

nd a tte mpt e d to sp e e d o ff

toN o . 0 6- 6392

G lod jo v. We bb

3 find her. I n his haste to turn his car around in the drivew ay , he ra n over some ha

y bales that ha d been stacke d there as a Hallowee n decor ation, and his ca r starte d to slide down the y ard. H e put the ca r into rever se and gunned the e ng ine to g et bac k onto the drivewa y . At this point he rea liz ed that he had run ove r something larg er tha n a hay bale a nd jumped out of the ca

r to find that he ha d run over Cherry . Chilson arrived and G lodjo y elled at him to ca l l 9 1 1 , whereupon Chilson went into the Spruce L ane r esidenc e and just a s quickly depar ted. When Chil son returne d, Glodjo surmised that Chilson had gotten Cher

ry drunk and c onfronted him, event u all y assaulting him and then cha sing him in his c ar. After losing sight of the flee ing Chilson, Glodjo beca me desponde nt. He boug ht beer and dra nk it and then went to his ex-wife’s house for some a dvice. The police found him there
. After a two day trial, the jury

convicted G lodjo of the lesser inc luded offe nse of f irst-deg ree manslaug hter, findingthat Glodjo ha d not intended to kill C herr y but had intended to injure he r. The jury rec o m mended 20 y ear s in prison, but enhance d the sentenc e to life upon findingGlodjo a persistent fe lony

offe nder ( PFO). G lodjo appeale d and the Ke ntucky Supreme Court af

firmed. On Au gu s t3 1 , 1 9 9 8 , Gl o d j o fi l eda m o t i o np u rs u an tt o Ky
. R
. C ri m . P
. 1 1
. 4 2 , cl ai m i n g — among other thing s — ineffe ctive assistanc e of c ounsel be cause his trial attorney s, Stephen Todd and Phili p Kimbel, had failed to visit the Spruce L ane r esidenc e. Glodjo insisted that the distance f rom Be nson’s front porc h to the Spruce L ane r esidenc e wa s too far a nd t o o o b s t ru ct ed for Be nson or Sanders to have hear d arguing or to have se en Gl o d

jo’s car dart at Cherry . Glodjo submit ted ph oto g ra ph s and a ma p, and te sti fi e d on his ow n be ha lf , arguin g that ha d his c ouns e l vi sit e d th e sit e as he r equeste d they could have obtained and produce d the photog raphs to demonstrate the distance and obstruction, ther eby

discredit i ng Be nson’s and Sande rs’s testimony . Glodjo rea soned that byN o . 0 6- 6392

G lod jo v. We bb

4 thus impeaching t h e S t at e’ s k ey witnesses, his counsel would have nullified the State’s pr oof of intent and obtained a

n acquittal. B oth attorney s testified that a visit t o t h e Spruce L ane r esidenc e
was unne cessa

ry beca use they alre ady had the infor

mation they

neede d to p u rs u e an “acc idental death” defe nse and impea ch the witnesse s. The trial c ourt denied the motion and Glodjo appeale d. On appea l, the state appellate court proper ly identified Strickland

as the c ontrolling law , but g ro up e d th is c la im i n w ithoth e rs c on c e rn ingthe a de qu a c y of the inv e sti g a tio n, ann ounc ingthat: Glodjo’s trial attorney s both asserted that a m o re thorough inve stigation was unnece ssary

beca use they possessed more than enoug h eviden ce to present a n acc idental death defe nse to the jury
. Glodjo f ailed to de monstrate at the hea ring how a more thoroug h investigation would have aide d his d ef en s e. Acc ording ly , we be lie ve Gl od

jo f a ile d to satis fy

his burd e n w ithre g ard

to t his argume nt. Glodjo v. Kentuck

y , No. 2003-CA-000858- MR, 2005 W L326968, *2 (Ky . App
. , Fe b. 11, 2005). Glodjo sought fur

ther a ppeal but the Ke ntucky

Supreme Court denie d discretionar y revie w. On J une 15, 2005, Glodjo filed the prese nt pe tition for a writ of habea s corpus, r aising nine claims of constitutional err or, including a claim of ineff ective a ssistance due to his attorney s’ fa ilure to visit the Spruce L ane residenc e and obtain evidenc e to impeach Be nson and Sander s. The district court de nied t he petition and denie d Glodjo’s reque st for a c ertificate of a ppeala bility (COA). Gl od jo m ov e d th is c ourt

fo r a CO A a nd we g ra nte d h is m oti on

a s to thi s is su e in t

wo pa rt s: (1 ) w he the r c ouns e l’ s f

a ilure to v isi t th e c ri me sc e ne to inv est igate fo r e vid e nc e to impeach the testimony

of the g overnme nt’s ey e-w itnesses cons t i t u t ed inef fec tive assistance and, if so, (2) whether the state court’s adjudication of the claim re sulted in a dec ision that was either ‘contra ry to, or involved an unre asonable application of, c le arl y e sta bli sh e d f e de ra l law ’ or ‘b a se d on a n unr e a so na

ble de te rm inatio n o f f

a c ts in light of the e vidence prese nted.’N o . 0 6- 6392

G lod jo v. We bb

G l o d jo arg ue s t w o ad d i t i o na l i ssue s i n his ap p ell ate b rief
. B ec au se w e d i d no t gra nt G l o d jo a C O A o n tho se 1 i s s u e s — i n f

a c t , w e e x pr e s s l y r ej e c t e d h i s r e qu e s t f or a COA on t h os e i s s u e s , t w i c e — w e de c l i n e t o a dd r e s s t h e m. 5 Glodjo subsequently

moved this court for r econside ration, which w e denie d. 1 II. To pr e va il o n a

c la im of in e ff

e c tiv e a ssi sta

nc e of c ouns e l, a

pe tit ion e r m

us t sh owthat hi s counsel’s de ficient pe rfor mance prejudice d him. Stri ck land v. W ashington , 466 U.S. 668, 687 (1984). To establish defic ient perf ormanc e, the petitioner must show his “counsel’s r epre sentation fell below a

n objective standa

rd of r easona

bleness.” Id . at 68 8. To est a bli shpr e jud ic e , h e “ mus t show that there is a rea sonable proba bility that, but for counse l’s unprofe ssional error s, the result of the proc eedingwould have be en diffe rent.” Id
. at 694. A habeas petitioner is entitled to relief on an inef fec tive-assistance claim only if the state c ourt’s re

jection of that c laim was “c ontrary to, or involved an unrea sonable a pplication of” Strickland , or rested “on an unrea sonable de termination of the fa cts in light of the e vidence prese nted in the State cour t proce eding .” 28 U.S.C. § 2254(d). Glodjo argues that the Ke ntucky Court of Appea ls erre d by concluding that he did not prese nt
any e vid e nc e to su

pp or t hi s c la im, ins ist ingthat he did su bmi t e vid e nc e . T o b e sure , G lod jo
s u b m i t t e d s o m e e v i d e n c e a tt h e h e ar i n g an d p r e s s e s t h a t s am e e v i d e n c e h e r e . B u t , b e t h a ta s i tm a y, he must still demonstrate that his counsel rende red ine ffe ctive assistanc e, and this he c annot do. B e c a u s e a p e t i t i o n e r m u s ts a t i s f

y bo th prong s of the Strickland standard, the inability

to prove
e ith e r one of the pr on g s — re g ard le ss of wh ic h one — re lie ve s the re vie wi ng c ourt of any du ty to consider the other. Strickland , 4 66 U. S. at 69 7. I n th is c a se , w e c an b e g in a nd e nd our a na ly sis wi th the pr e jud ic e pr on g . G lod

jo a rgue s th a t th e re is a

re a so na ble pr ob a bil ity that th e ou tc ome wo uldN o . 0 6- 6392

G lod jo v. We bb

6 h av e bee n differ ent if his counsel ha d visited the scene , obtained evide nce ( i.e., photog raphs or videotape) o f the distance and obstruction betwe en B enson’s re sidence and the Spruc e L ane residenc e, and use d that evidenc e to impeach Be nson’s and S ander s’s testimony
. We do not ag ree . I t is undisputed that Benson a nd Sanders he ard something from the Spruce L ane r esidenc e that cause d them to rush to Cherry ’s aid and call 911. Glodjo asserts that they hear d him y elling at Chilson t o call 911, so eve n Glodjo does not contend that the distanc e wa s too far for them to have hear d anything
. Rather, Glodjo contends that it was too far f or them to be sure that the ar g uing the y hear d had nec essar ily come from the S pruce L ane residenc e. S o, assuming that defe nse counse l had vis ite d th e sc e ne , o bt ain ed ph oto g ra ph s ( and pe rh a ps e ve n e xac t me a sure me nts of the dis tanc e in question), and use d that evidenc e to cha lleng e B enson’s testim ony that he had he ard a

rg uing c oming from the Spruce L ane r esidenc e bef ore Cher ry was run ove r, that alone would not undermine the prosec ution’s case , nor would it even ne cessa rily undermine B enson’s testimony
. Be nson testified, repe atedly , that he was not g ood at estimating distances and conce ded that he wa s indeed rather fa r
awa y ; Be nson testified that his attention was dra wn to the Sp ru ce L ane residenc e by y elling a nd
arguin g , b ut that he co uld no t mak e ou t any sp e c if ic s; an d Be ns on

te sti fi e d th a t it

wa s to o f ar f or him to identify

the people, but that he could only identify the car. For her part, Brandi Sander s testified that she did not see or hear any thing until she wa s much closer , and wa s relying on B enson’s a ccount of the e ve nts that oc c ur

re d wh ile the y we re sti ll a t the ir re sid e nc e . Th e re fo re , it is fa r f ro m c e rt a in that th is c ha lle ng e wo uld have ha d th e e ff

e c t on B e ns on ’s te sti mony

that G lod jo s up po se s. Moreove r, eve n assuming that defe nse counse l had suffic iently impeache d Be nson’s testimony and established that he could not have hear d arguing f rom the Spruce L ane r esidenc e, theN o . 0 6- 6392

G lod jo v. We bb

7 S t a t e h a d s t i l l p r e s e n t e d

s u f f i c i e n te v i d e n c e t o o b t a i nt h e m an s l a u g h t e r c o n v i c t i o n . J i m C h e r

r y, Cheryl’s ex-husband, testified that he wa s on the telephone with Cherry when Glodjo ar

rived that night a nd that he had he ard G lodjo ex claim, “I ’m g etting the hell out of here ,” just befor e the phone
we nt d e a d. Mu lti ple wi tne sse s, inc lud ing a state tr oo pe r, te sti fi e d th a t th e ho us e wa s in dis arr ay wi th the ph on e pu ll ed fro m th e wa ll, a s th ou g h th e re ha d b e e n a n a lte rc a tio n. An d G lod jo h ims e lf te sti fi e d a bo ut h is a ssa

ult on Chi lso n a

nd his purs uit

of Chi lso n in

his c ar. An d, in a dd iti on to t his evidenc e sug g esting some ang er and hostili ty , the j ury was left to question why Glodjo would even have taken his ca

r to pursue Cher

ry , who had a

ppare ntly wa n dere d off dr unk; why Glodjo was attempting to turn his ca

r ar ound in a narr ow and crow ded drivewa y , rathe r than ba cking it out; why Glodjo was driving on the g rass a nd driving over the hay bales; why Glodjo had attac ked Chilson rathe r t h an p ro tected Che rry ; why Glodjo had fled the scene and not re turned; and w hat re ason Be nson, Sanders, and the other witnesses would have had to te stify ag ainst him, if it had indeed bee n
an ac cident. Ba sed on the evidenc e pre sented, we conclude that Glodjo’s defe nse counse l’s failure to visit the Spruce L ane r esidenc e — and r esulting f ailure to impea ch B enson’s a nd Sanders’ s testimony with evidence from that sce ne — did not prejudice Glodjo’s defe nse in any meaning ful
w ay. F ina lly , B e ns on ’s a c c ount o f t he re vv inge ng ine and pat h of the c ar a re , f or the mos t pa

rt , c on sis te nt w ith Gl od

jo’ s. B oth te sti fi e d tha t G lod jo r e vv e d th e e ng ine (a lbe it f or dif fe re nt p ur po se s) and bot h testified that Glodjo swung the ca r into the y ard a

nd back a g ain (a lbeit for diffe rent purposes). We ha

ve no re ason to conclude that defe nse counse l could have impea ched this portion of B enson’s testimony

or that counse l could have obta ined a diff ere nt outcome by

doing so.N o . 0 6- 6392

G lod jo v. We bb

8 B e c a us e we fi nd

that G lod

jo c ann ot d e mon strate that hi s c ou ns e l w a s c on sti tut ion a lly ineffe ctive under Strickland , we c onclude that we need not c onsider the se cond par t of the COA, reg ardingthe state a

ppellate c ourt’s dec ision. III . For all of the for eg oing r easons, we AF F IRM the dis tr ic t c ourt ’s jud g me nt.